Omar Al-Bashir Arrest Warrants - Case Study Example

Omar Al-Bashir Arrest Warrant’s Case (Student Name) (Student ID) (Course Code) October 22, 2011 Table of Contents Table of Contents 2 Introduction 2 Circumstances around Omar al-Bashir’s arrest warrant 3 Malawi’s refusal to arrest Bashir 4 Grounds for Bashir’s arrest 5 Article 98(1) of the Rome Statute and the rejection of immunity for heads of state 6 Arrest warrant unjustified 11 The Consequences 12 Introduction The latest International Criminal Court (ICC) activity at the Hague regarding President Omar Al Bashir’s case which revolved around a crisis in Darfur attracted debates amongst international lawyers, activists of the human rights, scholars interested in genocide issues, experts on Sudan as well as journalists. Some people argue that Moreno-Ocampo, the ICC prosecutor was justified in charging the president with genocide. Other people suppose that he did not have enough grounds for issuing an arrest warrant. The ICC issued an arrest warrant to Bashir in 2008 but most African countries have denied arresting him. It is worth noting that even if under the Rome statute Malawi was bound to comply and hand Bashir over to the ICC, its leaders went against the statue by sitting that the ICC has been unfair to African leaders (Charles, 2008). There appear to be a conflict between the international law of state immunity and international criminal law for genocide, a reason that loosen Malawi’s grounds for arresting basher. Circumstances around Omar al-Bashir’s arrest warrant The International Criminal Court (ICC) case against Omar Al Bashir was as a result of an enquiry of the circumstances that were in Darfur when there was war. The United Nations (UN) Security Council is the one that referred this case to the ICC Prosecutor. In July 2008, the Prosecutor at the ICC filled an application to the court which issued two warrants of arrest. The first arrest warrant was given by Pre-Trial Chamber I on fourth March year two thousands and nine. There was a list of two counts of war crimes against Bashir; pillage as well as deliberately giving directions to his supporters to attack civilian population. He was accused of having committed five counts of crimes against humanity; murder execution, forcible transfer, torture as well as rape. The same chamber issued the second warrant of arrest on July twelfth 2010. Three additional accounts concerning genocides were given; genocide by killing, genocide that caused severe bodily and mental harm as well as genocide by calculatingly inflicting circumstances of life deliberated to cause physical destruction (John and Wynona,. 2009). Based on those accounts, the court requested a warrant of arrest as well as surrenders of Omar Al Bashir the President of Sudan. The entire UN Security Council members as well as the states parties that follow the Rome Statute of the International Criminal Court fully barked the arrest warrant. This arrest was detrimental to the president and it denied him some privileges. For instance, In May 2011, he did not attend the inauguration ceremony of Ugandan president Yoweri Museveni who was also a Rome Statute signatory as a result of pre-commitments. Bashir had also planned a trip in June 2011 which was from Iran to China. This trip was belated since the Turkmenistan and Tajikistan had refused to allow him admittance to their airspace. Tajikistan became a Rome statute signatory in 2008; however, Turkmenistan isn’t an ICC member. In addition to that, in June pressing engagements prohibited President Omar Al Bashir from attending an economic forum in Malaysia since it is a signatory of Rome statute (Thomas 2009). On Thirteenth October 2011 in London City, Human Rights Watch (HRW) as well as Amnesty International had called upon the government of Malawi to action the International Criminal Court’s (ICC) an arrest warrant for Omer Al Bashir who is the president of Sudan. Malawi’s refusal to arrest Bashir Despite the ICC issuing an arrest warrant in 2008, Malawi as a signatory to the ICC and as a UN state refused to hand him over as he attended a trade summit. Patricia Kaliati who is the minister for Information contended that it was not Malawi’s government business to arrest Bashir. Malawi being a signatory to the Rome statute is obliged to arrest Bashir, however, its leaders, including the president failed to take action sitting the fact that the ICC has been unfairly targeting African leaders. Malawi’s President, Bingu wa Mutharika is a staunch ICC critic. The leaders therefore felt that it is the high time that Africa should set up its criminal court. African Union has been pushing the UN to an arrest warrant against Bashir. Besides, there is a conflict between international criminal law for genocide and international law over immunity of the head of state. It is worth noting that the international law gives the head of state immunity over an arrest whereas international law for genocide stipulates that no government official should be given immunity over genocide issues, crimes against human rights as well as war crimes. Since Bashir was accused of having allowed is government to commit genocide, under international law for crime such as genocide, Malawi has the right to surrender al-Bashir to the ICC for trial. However, being close to Sudan, Malawi leaders understands the risks that might be involved should they opt to surrender Sudanese president. Pushing Malawi’s leader to surrender Omar al-Bashir is a great challenge to them since there is a likelihood of starring commotion as well as reigniting conflict in Sudan. Grounds for Bashir’s arrest The resent position of Omar Al Bashir being the head of state which isn’t a party to Rome statute does not have a jurisdiction over the case filed against him and his government. There are key elements that are in article 98(1). For instance, the article only applies to court’s request for assistance as well as surrender requests and not warrant requests as was the case with Bashir’s case. There is no circumstance under which the article can be utilized by the state being a ground for failure to comply with arrest request of the court. Jointly with the Rules of procedure and Evidence, Rule 195, the article provides the state with a process of raising court’s concerns regarding conflicts that exist between surrender and assistance requests and other international law obligations. Therefore, it is only the court and not the state that can determine whether immunities are applicable in the structure of its judicial process (John & Palloni, 2006). The ICC stipulates that even is international law gives immunity to the head of state, international criminal law does not support the grounds since the matter concern huge crimes such as genocide. This overrides the immunity given to the head of state. Therefore, Omar al-Bashir should be arrested. Article 98(1) of the Rome Statute and the rejection of immunity for heads of state Article 98(1) of the Rome Statute contains long-term denunciation of head of state immunity from genocide prosecution, persecution for crimes against humanity as well as war crimes, which are contained in both the Statute as well as in the general international law. It express that Article 98(1) of the Rome Statute does not offer justification to any nation to reject to arrest as well as surrender an individual sought in an ICC arrest warrant. More specifically, when nationality status of the suspect is party to the Rome Statute or rather the suspect comes from a state that is signatory to the statute. Secondly, when suspect has a nationality of a state that is not a signatory of the Rome Statute; a waiver applies under Article 98(1) (Thomas 2009). However, international law to a large extent recognizes heads of state’s immunities from genocide prosecution, prosecution for crimes against humanity as well as war crimes (Thomas 2009). A Request by ICC request for surrender or assistance related to proceedings against a head of state, therefore, does not require the requested state to operate in a manner that is inconsistent with its obligations which are stipulated in the international law regarding the State or even diplomatic immunity of an individual. In Bashir’s cases, it was an arrest request warrant which cannot be argued against using article 98(1), however, under international law, Sudan was entitled to claim immunity for Barshir. Rome statute, Article 27 Article 27 of the Rome Statute restates the firm principle which stipulates that no individual, including heads of state as well as other officials should be considered to be above the law as well as being immune from prosecution for genocide, crimes against humanity as well as crimes for war.Article 27 is concerned with resolving personal immunity issue especially in regard to genocide prosecution, prosecution for crimes against humanity as well as crimes of war within the legal administration of the Rome Statute.tit is worth noting that in situations where Article 27 is pertinent, it is inappropriate to resort to other law sources which are outside the Rome Statute for instance, the requested state’s obligations which is contained in the international law as pointed out in the in Article 98(1) in determining issues that are linked to the individuals’ immunity in proceedings submitted before the Court (John and Wynona, 2009). The Pre-Trial Chamber that issued Omar Al Bashir’s arrest warrant deliberately stated that, with respect to His position as the current president of Sudan, law sources which are other than the Rome Statute, the Elements of Crimes as well as Rule 195, the Rules of Procedures and Evidence of the Court may be considered if only there is a lacuna in the legal regime of the act. Genocide charges against al-Bashir do not clarify international criminal law It is worth noting that the UN’s International Commission of Inquiry on Darfur did not clearly clarify law of genocide. Cayley (2008) argues that UN Commission of Inquiry articulated that IDP camps in Sudan are evidence that Sudanese government had no genocidal intent. Some of the examples they gave include massacres in which some people were allowed to live even if many others were killed. They concluded that such instances verified absence of specific genocidal intent. However, they failed to recognize a methodical arrangement in the killings against some groups, although by the time they presented their report more than a hundred thousands people belonging to three ethnic groups had already been massacred while others had died of starvation as well as disease at a time when there was forced displacement in their villages (Thomas 2009). The report also maintained that ethnic groups in Darfur cannot be fully and objectively distinguished since they are all Arabic speakers. This ignores the fact that some groups such as Fur, Massalit as well as Zaghawa usually speak their own languages apart from speaking in Arabic. The UN Commission considered ethnic groups to be protected groups only due to the fact that they were subjectively renowned by the Janjaweed killers. However, the commission found out that Sudanese Government did not have genocidal specific intent since its intents seemed to be forced displacement and not destroying groups. This was later left to a later court to establish whether some specific people had such genocidal intent, therefore ignoring the preventive rationale of The Convention that prevents as well as Punish Genocide Crimes (Hagan and Wynona, 2009). The Commission’s interpretation misses the mark due to the fact that forced displacement into IDP camps cannot be taken to be an alternative to genocide, it actually accompanies genocide. William Schabas, one of the legal scholars mentions that ethnic cleansing as well as genocide is mutually exclusive crimes and they are inappropriate. Prosecutors ought to know that the same act can have two intents, that is, one that offers the mens rea for forced displacement crime while the other concerns specific intent for genocide, which is the deliberate annihilation of a significant part of an ethnic group. The UN Commission of Inquiry can be said to have ignored Genocide Convention’s specific language which clearly refers genocide as the premeditated destruction of a considerable part of a particular ethnic group. Its explanations that a great number of people are in the IDP camps due to displacement does not hit the nail on its head the point since there are hundreds of thousands of people from Fur, Massalit, and Zaghawa who have died simply due to their racial as well as ethnic identity which is an aspect of genocide. Genocide charges which are not the same as charges of crimes against humanity will do not clearly clarify international criminal law. The reason for this is that the prosecutor was trying to argue that genocide can be committed through a group‘s common rationale, without each person in that group having genocidal intent. Therefore, Bashir’s case cannot be strong at all (John and Wynona, 2009). Authority of charging Al- Bashir in the ICC Debates over who has the power to decide whether al-Bashir’s charges in the ICC would amount to a threat to international peace necessitating a Chapter VII deferment of the case under Rome Statute in Article 16. The acumen of filling charges against Omar Al Bashir can be construed to be both a legal as well as a political question. Moreno Ocampo, the ICC prosecutor entirely believes that a political body was involved by the UN Security Council in making political decision. Scholars have argued that UN Security Council unlike the ICC can make appropriate this political decision. The UN Charter Security Council has a prime liability for maintaining international peace as well as security. The Rome Treaty does not confer on ICC such responsibility. The International Criminal Court (ICC) is a judicial body which does not have the diplomatic as well as political tools to make judgments regarding appropriateness inappropriateness to continue with a case that has already submitted to it by the UN Security Council (Thomas 2009). Therefore, the UN Security Council made such decision by referring Darfur situation to the International Criminal Court (ICC). The council could decide to defer examination of the case against President Omar Al-Bashir by a vote of 9 Security Council members under Article 16 of the RS of the ICC. However, The UN Security Council is in support of the case against Bashir. It is worth noting that the nine UN Security Council members have not yet voted for deferral of the case. The UN Security Council does not have right to permit the Bashir’s case against to proceed to ICC (Thomas 2009). It does not make sense when Un Security Council member states especially the U.S. France as well as Britain to contend that the deferral will help to obtain political concessions. This does not the right way to make such decisions. International Criminal Court (ICC) is not platform for obtaining political leverage. It is worth to note that once it is entangled in political conditionality as well as in its monitoring, it risks losing its autonomy as a Court. Therefore, the UN Security Council should only decide that a deferral is meant to maintain peace and security and make such decisions without conditions. This will safeguard the Court’s independence and leave alternative of lifting the deferral open and without conditions. Therefore, any negotiating obligation concerning whether or not political conditions have been met will be avoided (Thomas 2009). Arrest warrant unjustified Omar Al Bashir’s arrest warrant is an enormous risk, which has the probability of attracting set back to peace and democracy that Sudan has now experienced. It is highly improbable to press forward the attainment of justice and human rights. Sudan is a volatile country and issuing an arrest warrant could only attract further disasters. This is a major set back to attainment of democracy in Sudan and not merely a step to ending impunity as some scholars argue. In the last two decades, atrocious crimes have been unswerving in Sudan. Violations of human rights human rights in Sudan have been a striking situation for a long time. It is with no doubt that President Omar Al Bashir bears responsibility for carrying out counterinsurgency campaigns which have involves innumerable abuses against civilians, fighting against repression of civil society in Sudan, fighting circumstances that dismantle democratic institutions, displacement as well as fighting other forms of injustices that are detrimental to Sudanese citizens. It is with no doubts that the ICC Prosecutor Luis Ocampo is within his rights to charge Bashir with severe crimes as well as demand his arrest. He would only be justified to do so only if he obtained evidence. Its only then that he would have reasonable grounds to suppose that an individual has committed a crime and within Court‘s jurisdiction, he is obliged to present a request for a warrant of arrest. The prosecutor in this case only operates under supposition that it is in the interests of justice as well as victim’s interests to call for a prosecution (John and Wynona, 2009). There are considerable doubts regarding thorough investigation of President Bashir’s involvement in genocide. The redacted text submitted in the Public Application fails to provide evidence of Bashir’s accusations. The empirics which were made public significantly hoist doubts concerning the quality of the case. A strapping case for greater responsibility for war crimes as well as crimes against humanity can only be made on the basis of an explanation of the condemnation against Ahmed Harun as well as Ali Kushayb. The Consequences It is worth noting that, immediately after announcement of ICC’s decision, Sudanese Government debarred numerous international agencies. This was foreseen as Salah Abdalla Gosh who was the chief of the National Intelligence and Security Service’s had clarified to supporters of ICC that they were Islamic fundamentalists who had become moderate as well as civilized and if pressure was put on them, they would revert back to the same circumstances where there was mass killings and genocide (John and Wynona, 2009). This acts as a good reminder that Sudan had been forgotten, stigmatized as well as humiliated during the 1990s when it sponsored jihadist terrorism. The situation was not only atrocious for the Sudanese citizens but it also led to several awfully adverse outcomes globally. Due to international experience, there has been a notion that Sudanese leaders should not be isolated as well as humiliating them since it would enrage them and this would be detrimental to peace resolution. As a golden rule, adversaries need to be offered a ladder to climb down. Therefore, the act of prosecuting Bashir breaks this rule this might hinder attainment of peace in the country (Thomas 2009). Conclusion It is apparent that ICC mechanisms as well as judgments and practices of various states seem to have rejected prosecution immunity of the head of states as well as other government officials especially prosecution for genocide, crimes against humanity as well as war crimes. This is also not waived by the international criminal law; therefore, Omar Al Bashil’s case was not an exceptional. It is clear that there legal basis does not exist both within the Rome Statute and in other international sources of law, for states that are signatory of the statute to refuse to arrest of the named individual in an ICC arrest warrant. The official responsibility of the suspect as a president or having other government position does not have relevance on the compulsion to prosecute without delay any warrant of arrest by the Criminal Court. Malawi was indeed supposed to hand over al-Bashir on the ground stipulated in the Rome statute as well as on the basis of international criminal law. However, this would have posed a great challenge to the Malawi leaders who understand the political climate of Sudan. Bashir’s arrest could star commotion and this would lead to re-occurrence of the conflict in Sudan. It has not clearly been demonstrated who would make political decisions especially those that led to Bashir’s case. It is also worth noting that the UN Security Council as well as ICC prosecutor Luis Ocampo failed to provide strong evidence again involvement of Bashir in genocide as accused. Therefore, his cases seem not justified. It is also worth to mention that even if the case was deferred to ICC by the UN Security Council, the nine members of the council have not yet signed the agreement over the case. It should be recognized that Bashir’s warrant or arrest may have a consequence of hampering international peace. His arrest has the capability of bring disruptions to peace that prevailed in Sudan. References Cayley, A. 2008. ‘The Prosecutor’s Strategy in Seeking the Arrest of Sudanese President Al Bashir on Charges of Genocide,’ Journal of International Criminal Justice, Vol. 6(3), 829-840. Charles A. 2008. 'Civilian starvation and relief during armed conflict: The modern humanitarian law,' Georgia Journal of International and Comparative Law, Vol.19 (1), pp. 1-85. Hagan, J, and, Wynona, R. R 2009. Darfur and the Crime of Genocide. Cambridge: Cambridge University Press. John H. & Palloni A. 2006. “Death in Darfur,” Science, Vol. 313(5793), pp. 1578 – 1579. John H and Wynona R.R. 2009. Darfur and the Crime of Genocide. Cambridge: Cambridge University Press. Thomas, E. 2009. Against the Gathering Storm: Securing Sudan’s Comprehensive Peace Agreement. London: Royal Institute for International Affairs. Read More